Humphreys & Partners Architects, L.P. v. Lessard Design, Inc.

• Decision Date: 23 June 2015
• Docket Number: No. 14–2030.,14–2030.
• Citation: 790 F.3d 532
• Parties: HUMPHREYS & PARTNERS ARCHITECTS, L.P., Plaintiff–Appellant, v. LESSARD DESIGN, INCORPORATED; Lessard Group Incorporated; Christian J. Lessard; Clark Builders Group, LLC; PDT Builders, LLC; The Penrose Group ; Sixth Penrose Investing Company LLC; Northwestern Investment Management Company, LLC; Northwestern Mutual Life Insurance Company, Defendants–Appellees, and Penrose Partners ; Park Crest SPE Phase I, LLC ; Penrose/Donohoe Tysons, LLC, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

790 F.3d 532

HUMPHREYS & PARTNERS ARCHITECTS, L.P., Plaintiff–Appellant

v.LESSARD DESIGN, INCORPORATED; Lessard Group Incorporated; Christian J. Lessard; Clark Builders Group, LLC; PDT Builders, LLC; The Penrose Group ; Sixth Penrose Investing Company LLC; Northwestern Investment Management Company, LLC; Northwestern Mutual Life Insurance Company, Defendants–AppelleesandPenrose Partners ; Park Crest SPE Phase I, LLC ; Penrose/Donohoe Tysons, LLC, Defendants.

No. 14–2030.

United States Court of Appeals, Fourth Circuit.

Argued: May 12, 2015.

Decided: June 23, 2015.

Amended: June 24, 2015.

ARGUED:Patrick Andrew Zummo, Law Offices of Patrick Zummo, Houston, Texas, for Appellant. Patrick Joseph Coyne, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, D.C.; Antigone Gabriella Peyton, Cloudigy Law PLLC, McLean, Virginia, for Appellees. ON BRIEF:Walter D. Kelley, Jr., Hausfeld, LLP, Washington, D.C.; Jennifer L. Swize, Jones Day, Washington, D.C., for Appellant. Kandis M. Koustenis, Cloudigy Law PLLC, McLean, Virginia, for Appellees The Penrose Group, PDT Builders, LLC, Sixth Penrose Investing Company LLC, and Clark Builders Group, LLC; Christopher P. Foley, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, D.C., for Appellees Lessard Design, Incorporated, Lessard Group Incorporated, and Christian J. Lessard; Christopher P. Mead, London & Mead, LLP, Washington, D.C., for Appellees Northwestern Investment Management Company, LLC and Northwestern Mutual Life Insurance Company.

Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.

Opinion

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Judge HARRIS joined.

DUNCAN, Circuit Judge:

In this architectural copyright infringement action, Plaintiff–Appellant Humphreys & Partners Architects, L.P. (“HPA”) appeals the district court's entry of summary judgment in favor of Defendants–Appellees Lessard Design, Inc., Lessard Group, Inc., and Christian J. Lessard (collectively, “Lessard”); Clark Builders Group, LLC (“Clark”); PDT Builders, LLC, The Penrose Group, and Sixth Penrose Investing Co., LLC (collectively, “Penrose”); and Northwestern Investment Management Co., LLC, and Northwestern Mutual Life Insurance Co. (collectively, “Northwestern”). HPA claims that the design, development, ownership, and construction of Two Park Crest, an apartment building in McLean, Virginia, infringed HPA's architectural copyright embodied in Grant Park, a condominium building in Minneapolis, Minnesota.¹ The district court awarded summary judgment to Appellees, primarily because no reasonable jury could find that the Grant Park and Two Park Crest designs are substantially similar. For the following reasons, we affirm.

I.

A.

HPA is an architecture firm based in Dallas, Texas, that designs multi-family residential buildings. In 2000 and 2001, HPA designed a high-rise residential tower known as Grant Park. In 2003, HPA registered the Grant Park design as an architectural work with the United States Copyright Office and received a certificate of copyright registration. The Grant Park building was constructed in Minneapolis, Minnesota, in 2004.

Grant Park is a 27–story condominium building with 11 units per floor. It has two separate elevator cores, such that each floor has two elevator lobbies. The units on a typical floor open directly into these lobbies, five units into one and six into the other. The lobbies also each provide access to a stairwell and to either a trash chute or a mechanical/electrical room. Residents can travel between the lobbies through an unfinished service corridor, which allows all residents to access both utility rooms and both stairwells. This dual-core layout is desirable because it eliminates the need for a finished central hallway and fosters a sense of community among the units sharing a lobby.

In 2008, Penrose began developing a high-rise apartment building called Two Park Crest for construction in McLean, Virginia. In 2010, it solicited design proposals from three architecture firms, including HPA and Lessard, a firm based in Vienna, Virginia. HPA submitted illustrations of its Grant Park design in September 2010 and met with Penrose in October 2010.

On November 3, 2010, Penrose informed Lessard that it wanted the Two Park Crest design to feature dual elevator cores connected by a service corridor, and emailed Lessard the Grant Park floorplan to illustrate the concept. Later that month, on November 15, Lessard emailed Penrose a preliminary sketch of a design with two elevator cores; Penrose responded that the design was “looking good.” J.A. 9033. Lessard ultimately submitted a design for a 19–story building with 17 apartments per floor. The design incorporated three elevator cores: two passenger elevator cores connected by an unfinished hallway, and a service elevator core accessible from that hallway. Of the 17 apartments per floor, 8 would open directly into one passenger elevator lobby and 9 would open directly into the other.

On November 17, 2010, Penrose told HPA that it had hired Lessard to design the Two Park Crest project. Penrose subsequently sold the project to Northwestern. In November 2011, Northwestern hired Clark to construct Two Park Crest.

Clark began constructing the building in January 2012.

B.

In April 2013, HPA filed this action against Appellees² under 17 U.S.C. § 101 et seq., alleging one count of copyright infringement against each Appellee. Following discovery, the parties cross-moved for summary judgment. Appellees argued that they were not liable to HPA because, among other reasons, they did not copy the Grant Park design and the two designs are not substantially similar. Appellees supported their motions with expert reports filed by three architects—Stephen Gresham, Robert Greenstreet, and Douglas Carter—who concluded in their reports that the two designs are not substantially similar.

HPA argued in its motion and responses to Appellees' motions that Lessard copied the Grant Park design after receiving that design from Penrose. It claimed that the speed with which Lessard created the Two Park Crest design is direct evidence of copying, and that the similarities between the two designs is circumstantial evidence of copying. HPA supported its claim that the two designs are substantially similar with a declaration from architect and HPA expert Daniel Figert, who identified nine characteristics shared by both designs—for example, both designs are for multi-family buildings that are approximately twenty stories tall, that have two elevator lobbies connected by a service corridor, and that provide direct access to units from the elevator lobbies.³ HPA argued that the presence and arrangement of these nine features in Two Park Crest infringed its copyright in the Grant Park design.

HPA also moved to strike Gresham's, Greenstreet's, and Carter's expert reports on the ground that those reports were inadmissible hearsay. In response, Appellees provided declarations from the experts verifying the contents of their reports and stating that they would testify at trial to the substance thereof. The district court then denied HPA's motions to strike, reasoning that the declarations, although belated, cured HPA's objection.

On September 2, 2014, the district court granted Appellees' motions for summary judgment. The court determined that summary judgment was appropriate because, among other reasons, (1) there was no direct evidence of copying, and (2) no reasonable jury could find that the Grant Park and Two Park Crest designs are extrinsically (i.e., objectively) similar.

The court held that the two designs are not extrinsically similar for two independently sufficient reasons. First, neither the nine features that Figert identified nor their arrangement in Grant Park is eligible for copyright protection. And second, those features are presented and arranged differently in the Two Park Crest design. With respect to the arrangement of the nine features in the two designs, the court noted that Appellees' experts had provided detailed explanations as to how the two designs differ with respect to their size, footprints, floorplans, and exterior appearances. HPA's expert, in contrast, “offer[ed] no evidence as to what makes the two arrangements extrinsically similar.” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 43 F.Supp.3d 644, 677 (E.D.Va.2014). The court concluded that Appellees were “entitled to summary judgment ... based on the results of the extrinsic similarity analysis.” Id. HPA timely appealed.

II.

Before turning to HPA's arguments on appeal, we set forth the law governing architectural copyright infringement claims. “Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated....” 17 U.S.C. § 102(a). In 1990, Congress expanded the scope of “works of authorship” to include “architectural works,” id. § 102(a)(8), by enacting the Architectural Works Copyright Protection Act (the “AWCPA”), Pub.L. No. 101–650, §§ 701–706, 104 Stat. 5089 (1990) (codified in various sections of 17 U.S.C.). The AWCPA defines an architectural work as “the design of a building as embodied in any tangible medium of expression.” 17 U.S.C. § 101. “The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”Id. The AWCPA's legislative history explains that the arrangement and composition of spaces and elements is protectable because “creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole.” H.R.Rep. No. 101–735, at 18 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6949.

“To establish a claim for copyright infringement, a plaintiff must prove that it owned a valid copyright and that the defendant...